Thursday, October 01, 2009Last Update: 10:27 AM PT

Judge Rejects Challenge to Arizona Abortion Law

By ANNIE YOUDERIAN

(CN) - A federal judge in Phoenix refused to block enforcement of an Arizona law that mandates a 24-hour waiting period before abortions can be performed or before doctors can get paid for those procedures. A group of doctors and two health clinics, the Tucson Women's Center and Family Planning Associates, sued the Arizona Medical Board and the state attorney general in federal court, seeking a preliminary injunction blocking enforcement of the new law, passed by the state Legislature and signed into law in July. They argued that the 24-hour waiting provision unconstitutionally burdens a woman's right to an abortion, and that the payment provision is unconstitutionally vague. The law went into effect on Sept. 30. A day earlier, U.S. District Judge David G. Campbell denied the plaintiffs' request, explaining that they "have failed to show that they are likely to prevail on the merits of these constitutional claims." The clinics had submitted declarations from 92 Arizona abortion patients, detailing how the law's 24-hour provision could either endanger their health or discourage them from seeking abortions. Though the law makes exceptions for medial emergencies, the plaintiffs argued that this loophole is too narrow and protects women only from death or serious risk of permanent injury. Two doctors said they frequently performed abortions based on patients' health issues, but that it was difficult to "be certain" that the risk of delaying these abortions would fall under the medical emergency exception. Judge Campbell noted that the exception does not require such certainty. "It calls only for a physician's 'good faith clinical judgment,'" Campbell wrote. More importantly, the judge added, the doctors provided no information about the frequency of these borderline cases. "Plaintiffs therefore fail to show that health issues are not covered by the medical emergency exception will arise in a 'large fraction' of the relevant group," the judge concluded. Campbell also rejected claims that the law exposes women to unwanted disclosure, or that victims of rape or incest will be traumatized by the statute's required disclosures and waiting time. Based on the evidence, Campbell ruled that only 11 of the 92 patients likely faced a "substantial obstacle" from the 24-hour provision. Because this number can't be considered a "large fraction," the judge refused to grant the plaintiffs' request for an injunction. However, Campbell agreed that the payment provision is ambiguous, because it could be interpreted to apply to women who simply ask their doctors about an abortion without intending to get one. He certified this question to the Arizona Supreme Court: "Whether the payment provision of A.R.S. § 36-2153(D) applies only when the informed consent and 24-hour waiting period of A.R.S. § 36-2153(A) is triggered by the actual providing or inducing of an abortion, or whether it applies outside the abortion context whenever an inquiry about abortion is made to the health care provider."